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Restriction of Unbuildable, Gerrymandered Zoning Lots to Be Studied by City Planning Following Requests by Council Member Ben Kallos and Advocates

Tuesday, May 14, 2019

Restriction of Unbuildable, Gerrymandered Zoning Lots to Be Studied by

City Planning Following Requests by Council Member Ben Kallos and Advocates

New York, NY — Tiny, unbuildable, gerrymandered zoning lots that have been created for the sole purpose of evading zoning restrictions, will be studied for regulation by the Department of City Planning following requests by Council Member Ben Kallos and advocates. City Planning will conduct a study related to the establishment of a minimum lot size for non-residential zoning lots, to prevent otherwise unusable zoning lots yielding unintended building forms in certain zoning districts. The results of the study will be shared with the Council by August 2019.

“Our city needs more housing for everyday New Yorkers, but developers keep creating new loopholes to get around fair zoning, just get better views for billionaires,” said Council Member Ben Kallos. “We have fought bad developers every step of the way, but it’s become clear that a zoning change is needed, and that’s just what City Planning will be studying. Thank you to City Planning Chair Marisa Lago for working to close loopholes so our zoning can effectively protect New York City’s neighborhoods.”

This issue was first raised by Council Member Kallos at 180 East 88th Street, in his district, created a 4-foot zoning lot to claim the property did not front on 88th Street (despite the address), so that it did not have to comply with zoning rules. He and Borough President Gale Brewer sent a letter on May 16, 2016 to the Department of Buildings, who issued an immediate stop work order in response, as covered by the New York Times. The Times continued its coverage of the case, with an exploration of how this loophole is used to avoid the zoning. After the 4-foot lot became a 10-foot lot and the Department of Buildings rescinded its stop work order, Council Member Kallos, Borough President Gale Brewer, Senator Liz Krueger, and a coalition of community groups including Carnegie Hill Neighbors and Friends of the Upper East Side Historic District sued the Department, and then appealed the case to the Board of Standards and Appeals (BSA).

On July 16, 2018, when the case came to the BSA, elected officials from Manhattan joined Kallos at a rally urging the administration to consider the citywide implications that the ruling in the case would carry. Council Member Kallos also submitted a letter co-signed by Borough President Brewer and ten additional city elected officials urging the BSA to act. Although the BSA ruled that 180 East 88th Street was already too far along to stop its construction, it did recommend that the Department of City Planning review the zoning to prevent the creation of unbuildable lots. In the decision, the chair wrote:

“Do I think the zoning lot subdivision was done to intentionally alter the development project so that the sliver law and tower-on-base regulations did not apply? Yes. Do I think it should have been allowed to do that? No. . . . .[but] there just isn’t any way for DOB to regulate this problem without City Planning creating a minimum standard for zoning lots for all uses as it has done for residential uses. . . . Such a clarification would be easy for City Planning if it were willing to look at it, and I encourage them to do so.” – BSA Chair Margery Perlmutter, December 10, 2018

On January 17, 2018 at a town hall hosted by Council Member Kallos, Mayor Bill de Blasio committed to studying the loopholes used by developers to skirt the zoning code, including mechanical voids and unbuildable zoning lots.

In January 2019, City Planning certified a zoning text amendment to eliminate the mechanical voids loophole in high density residential neighborhoods. In February 2019, advocates with support from Council Member Kallos met with the Department of City Planning to present on the issue of gerrymandered zoning lots. On April 16, 2019, at a hearing of the City Council Land Use Subcommittee on Zoning and Franchises, the Department of City Planning committed to introduce proposal to address the mechanical void loophole in commercial districts and to study unenclosed voids in residential buildings. On May 13, 2019, Council Member Kallos sent a letter to the Department of City Planning urging them to move to the next loophole by restricting the size of unbuildable gerrymandered zoning lots in commercial and manufacturing districts just as the city had done in residential districts. Loopholes that permit the sculpting and gerrymandering of zoning lots are just some of the tactics being used by developers that twist the provisions of the Zoning Resolution far beyond their policy intent. Common use of these loopholes has citywide consequences as they lead to unpredictable and out-of-scale development.

Residential districts currently have a minimum lot area and minimum lot width ranging from single family homes in the lowest density districts of 9,500 square feet and 100 feet wide to 1,700 square feet and 18 feet wide in the highest density districts under §23-32 of the Zoning Resolution.

“I am pleased to hear that City Planning will conduct a study to examine loopholes that allow developers to sidestep existing zoning regulations. When New York City establishes rules around height and density, it has a reasonable expectation that stakeholders will follow those rules. I look forward to seeing the results of the study and subsequent actions to close existing loopholes. Thank you to Council Member Kallos for being a leader on this issue, said Council Member Keith Powers."

“The ability to create tiny zoning lots has serious citywide implications. Without action from the DCP, the sky will literally be the limit to the at-will sculpting of zoning lots that serve no legitimate purpose, bear no relation to their corresponding tax lots, and pose serious administrative challenges. DCP’s commitment today to fast-track a study of gerrymandered and sculpted zoning lots is a welcome step, and exactly what FRIENDS has been advocating for since the Chair of the BSA referred this issue to DCP in its decision on 180 East 88th Street in December 2018. Such developments make a mockery of the city’s own rules, and DCP’s commitment today is one step further in cracking down on the zoning loopholes that are leading to unpredictable, out of scale development on the Upper East Side and beyond," said Rachel Levy Executive Director at Friends of the Upper East Side Historic Districts.

"As they say, 'the first step to recovery is admitting you have a problem'. While citizens flit between DOB Challenges and BSA Appeals, emptying the piggy bank, Chair Perlmutter has rightly pointed out that the problem is for the Department of City Planning to resolve. Today, New Yorkers have waited with bated breath for action on the mechanical voids more than five months after a promised resolution. Will gerrymandered and unbuildable lots be the same? How many more 39-sided zoning lots must fly in the face of DCP, undermining their departments very basis before they follow their mandate?" Said Sean Khorsandi Executive Director, Landmark West!

“We wish to thank City Planning Commissioner Marisa Lago for taking these steps to begin closing the zoning loopholes made possible by the use of mechanical voids and gerrymandered zoning lots. These loopholes have egregiously been exploited by developers in search of taller buildings, especially recently. We know more work needs to be done to limit these abuses. But these measures form a good platform on which to build,” said Lo van der Valk, President, Carnegie Hill Neighbors.

I'm thrilled that DCP is addressing tiny zoning lots. We brought this issue to their attention in February and they really listened and learned how tiny zoning lots were being used to undermine the intent and protections of the zoning resolution. Three months later they announce a study to close the loophole. That's fantastic and shows government being responsive. Thanks to CM Kallos for his help and support and to DCP for their willingness to engage and listen, said George Janes AICP, planning and zoning consultant."

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